In These Five Social Media Speech Cases, Supreme Court Set Foundational Rules for the Future

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The U.S. Supreme Court addressed government’s various roles with respect to speech on social media in five cases reviewed in its recently completed term. The through-line of these cases is a critically important principle that sets limits on government’s ability to control the online speech of people who use social media, as well as the social media sites themselves: internet users’ First Amendment rights to speak on social media—whether by posting or commenting—may be infringed by the government if it interferes with content moderation, but will not be infringed by the independent decisions of the platforms themselves.

As a general overview, the NetChoice cases, Moody v. NetChoice and NetChoice v. Paxton, looked at government’s role as a regulator of social media platforms. The issue was whether state laws in Texas and Florida that prevented certain online services from moderating content were constitutional in most of their possible applications. The Supreme Court did not rule on that question and instead sent the cases back to the lower courts to reexamine NetChoice’s claim that the statutes had few possible constitutional applications.

The court did, importantly and correctly, explain that at least Facebook’s Newsfeed and YouTube’s Homepage were examples of platforms exercising their own First Amendment rights on how to display and organize content, and the laws could not be constitutionally applied to Newsfeed and Homepage and similar sites, a preliminary step in determining whether the laws were facially unconstitutional.

Lindke v. Freed and Garnier v. O’Connor-Ratcliffe looked at the government’s role as a social media user who has an account and wants to use its full features, including blocking other users and deleting comments. The Supreme Court instructed the lower courts

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